U.S. Senate

The Tricky Numbers Driving Democrats' Supreme Court Battle

The problem for every scenario: They simply don't know when Republicans will change the rules.

Finger on the button.

Photographer: Zach Gibson

The discussion about confirmation of Donald Trump's first Supreme Court pick, Circuit Court Judge Neil Gorsuch, begins with one fact, and two numbers.

The fact is that Republicans successfully blocked President Barack Obama's choice to fill this vacancy last year. Whether justified or not, it was certainly unprecedented and capped off numerous examples of unprecedented efforts to obstruct Obama on judicial and executive branch nominations throughout his two terms. That's important now because Democrats, including those in the Senate, are still white-hot hopping angry over this Supreme Court seat. 

And the numbers are 52 (the amount of Republicans in the Senate) and 48 (the amount of Democrats, including two independents who caucus with them):

  • To defeat a filibuster: Republicans need to be united and win the votes on cloture of eight Democrats.
  • To confirm nominee: If Democrats are united, then Republicans need 50 of 52 votes from their conference along with the tie-breaking vote from Vice President Mike Pence. 
  • To nuke a filibuster: If Democrats are united, then Republicans need 50 of 52 votes from their conference plus Pence's vote to eliminate the filibuster on Supreme Court nominations, otherwise known as the "nuclear option." 

What's a bit tricky about this math is that each of these three potential votes -- cloture, confirmation, and eliminating the filibuster -- are conceptually separate. It's possible that a senator might oppose a nominee but also oppose defeating that nominee by filibuster, either because her opposition is relatively mild or because she is against filibustering any Supreme Court nominee. Similarly, it's possible a senator (probably a Republican in this case) could support a nominee but oppose eliminating the filibuster.

Before Gorsuch was named, we were in a pre-spin gamesmanship zone that some players will continue to play at least up to Senate Judiciary Committee hearings. Democrats (or at least some of them) were saying they won't filibuster; Senate Majority Leader Mitch McConnell promised to preserve the right to filibuster. On both sides, that's hogwash, but appropriate hogwash. Democrats want to say that they are opposed to this particular out-of-the-mainstream choice, although they would have accepted a "mainstream" selection. Republicans want to say that they wanted to keep the filibuster, but that a Democratic blockade gave them no choice.

The target isn't only public opinion. 1 It's the handful of swing voters within the Senate. Red-state Democrats such as Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota want to be able to portray themselves as bipartisan and reasonable; that means their votes are potentially up for grabs. Still, since it's unlikely Republicans can win the eight Democrats they would need to get to 60, the Democratic side is mostly about spin, not about actual confirmation. 

More important are the handful of swing Republicans. It's difficult to see a third potential "no" vote on Gorsuch, a very conservative justice with solid credentials, after Maine's Susan Collins and Alaska's Lisa Murkowski, but it's always possible. Much more realistic, however, is the possibility that several Republicans are reluctant enough to kill the filibuster that they would be willing to let a nominee be defeated. If it's a nominee they aren't enthusiastic about fighting for, that reluctance can be decisive.

And that's the problem for Democrats. While they can be certain that a full blockade (that is, an announced filibuster against any possible candidate) would trigger majority-imposed rules reform to end the blockade, they simply don't know whether they can block zero, one, two, or (likely) even more potential Supreme Court nominations before Republicans change the rules. It's quite possible that McConnell doesn't know, because it's possible that the key swing senators themselves haven't decided. Which, again, is why McConnell and Senate Minority Leader Chuck Schumer, along with solid partisans on both sides, have been pretending to be less partisan about it than they really are. 

For Democrats, a filibuster now is a poor strategy if they believe one of two possibilities. The first is that Republicans will allow Democrats to defeat any one or two nominees without going nuclear and that the difference between Gorsuch and a Gorsuch replacement is relatively small compared to the difference between some future nominee and his or her replacement: In other words, if you only have one (or two) shots, use them when they count.

The other scenario would be if they believe Republicans would go nuclear against a Gorsuch filibuster, but not against some future even more conservative nominees (who Republicans would nevertheless vote for, since otherwise the filibuster would be irrelevant). Or: use it when it would work. 2  

If they believe that neither of those applies, then they might as well get it over with: Filibuster now, declare their intention to avenge Barack Obama for the "stolen" Supreme Court seat, and force Mitch McConnell to go nuclear -- just as McConnell and the Republicans forced the Democrats to change the rules on lower court and executive branch nominations in October 2013. And then hope that the next vacancy takes place with a Democrat in the White House or with a Democratic majority in the Senate, or both. 

All of this depends, of course, on how Gorsuch looks by the time the Judiciary Committee votes, and by the time the nomination reaches the Senate floor. That sort of thing won't change McConnell's vote or Schumer's or any of the other 80 or so solidly partisan senators, but swing votes have changed before over such things. 

Trump, Dems Set for Battle on Gorsuch Supreme Court Pick

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

  1. Most voters barely pay attention to Supreme Court nominations, and certainly aren't going to care very much about Senate rules and procedures. However, politicians as a rule are paranoid and self-centered, and so they may believe voters care about whether one side or the other if behaving fairly, and that belief can affect their actions even if it is totally wrong.

  2. I've seen some suggestions that a filibuster now might affect Justice Anthony Kennedy's retirement decision (Democrats do not want him to retire and be replaced by a more reliable conservative). I suppose that's possible, but it requires mind-reading to know in which direction it could affect him, so it's best ignored. 

To contact the author of this story:
Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor responsible for this story:
Mike Nizza at mnizza3@bloomberg.net

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